United States v. Eley

MEMORANDUM DECISION AND ORDER ON MOTION TO PERMIT
PRIVATELY RETAINED CO-COUNSEL

John
H. Rich III United States Magistrate Judge.

The
defendant, who has been indicted on a charge of conspiracy to
distribute cocaine base and heroin in violation of 21 U.S.C.
§ 841(a)(1) and 841(b)(1)(B), see Indictment
(ECF No. 3), moved for leave to permit Lawrence Schoenbach,
Esq., an attorney provisionally retained by his girlfriend
and grandmother, to serve in a limited capacity as co-counsel
with his court-appointed attorney, William Maselli, Esq.
See Letter dated August 23, 2017, from William
Maselli to Christa Berry, Clerk of Court[]
(“Motion”) (ECF No. 86). The government opposed
the Motion, arguing that the defendant must either choose to
continue at trial with his court-appointed attorney or
utilize the services of Attorney Schoenbach alone.
See Government's Response to Defendant's
Motion for Leave To Appear (“Response”) (ECF No.
88) at 1-2. After conducting a hearing, and with the benefit
of post-hearing briefs, I found that the retention of private
counsel for less than full representation by third parties,
who have been shown to have used their own funds, does not
require the defendant to forfeit his right to court-appointed
counsel, and I granted the Motion. See ECF No. 102.
I now supplement my earlier docket endorsement with this
memorandum decision.

I.
Factual Background

At the
defendant's initial appearance, I was provided with his
signed and sworn Financial Declaration (ECF No. 15). He
stated, inter alia, that he was not married, had one
dependent, had no assets other than $200 in a checking
account, had no current employment, and had last been
employed four months earlier, earning $2, 500 a month.
See Id. I approved the Financial Declaration and
appointed an attorney from the District's Criminal
Justice Act (“CJA”) panel to represent the
defendant on June 13, 2016.[1]See ECF Nos. 16, 17. The
defendant pleaded not guilty, and the case was set for trial.
See ECF No. 18.

The
instant motion was filed two months before trial was set to
commence. See ECF Nos. 84, 86. The government filed
a response, to which the defendant replied. See ECF
Nos. 88, 89. On September 13, 2017, I held a hearing on the
motion and ordered further briefing on the issues raised
therein. See ECF No. 91. Both parties filed
simultaneous post-hearing briefs, see Supplemental
Memorandum of Law in Support of Naquan Eley's Motion To
Permit Privately Retained Counsel To Join CJA Counsel in the
Representation of the Case (“Defendant's Suppl.
Memorandum”) (ECF No. 93); Government's
Supplemental Memorandum (“Government's Suppl.
Memorandum”) (ECF No. 94), and responses, see
Government's Response to Defendant's Supplemental
Memorandum (“Government's Response”) (ECF No.
95); [Defendant's] Reply re: Motion for Leave To Appear
(ECF No. 97). In order to provide as much notice as possible
to the parties, I granted the Motion by
“text-only” docket endorsement on September 28,
2017, ECF No. 102, to allow Attorney Schoenbach to
participate with Attorney Maselli at a pre-jury selection
conference on September 29, ECF No. 104, and jury selection
on October 2, ECF No. 106.

II.
Applicable Legal Standard

The
determination of eligibility for representation under the CJA
“is a judicial function to be performed by the Court
after making appropriate inquiries concerning the
person's financial eligibility.” Plan for the
Adequate Representation of Defendants Pursuant to the
Criminal Justice Act of 1964 (D. Me., amended July 2017)
(“Local CJA”) § 4.2.1.2. In determining
financial eligibility, the court should consider “the
cost of providing the person and his or her dependents with
the necessities of life, the cost of securing pretrial
release, asset encumbrance, and the likely cost of retained
counsel.” Id. § 4.2.1.4. The initial
determination of eligibility for assigned counsel “must
be made without regard to the financial ability of the
person's family to retain counsel unless the family
indicates willingness and ability to do so promptly.”
Id. § 4.2.1.5. “Any doubts about a
person's eligibility should be resolved in the
person's favor; erroneous determinations of eligibility
may be corrected at a later time.” See Id.
§ 4.2.1.6.

When
considering the family resources of a defendant, “[a]t
or following the appointment of counsel, the judicial officer
may inquire into the financial situation of the person's
spouse (or parents, if the person is a juvenile) and if such
spouse or parents indicate their willingness to pay all or
part of the costs of counsel, the judicial officer may direct
deposit or reimbursement.” Guide to Judiciary Policy,
vol. 7, pt. A, ch. 2 (“Judiciary Policy”) §
210.40.50.

III.
Discussion

At the
September 13, 2017, hearing, Attorney Schoenbach stated that
he had been hired by the defendant's grandmother and
girlfriend to meet with and advise the defendant when he was
originally arrested in New York. More recently, he was
provisionally retained by them for the limited purpose of
providing joint representation with Attorney Maselli to the
defendant. He confirmed that the grandmother and
girlfriend's limited funds prevented him from being
retained to serve as sole counsel. He explained that the
grandmother and girlfriend had agreed to provide one-third of
his usual fee for retained clients for a trial of a similar
nature, together with his travel and lodging
expenses.[2] He asserted that he could not undertake
the task of representing the defendant alone, for the fee
agreed to by the defendant's grandmother and girlfriend.
At hearing, the defendant expressed a desire for the proposed
joint representation.

The
government raised two principal arguments in support of its
bid for denial of the defendant's motion. First, it
contended that the defendant's grandmother and
girlfriend, even if considered third parties, have indicated
a willingness to promptly pay for his counsel, and,
therefore, the defendant should not be entitled to two
attorneys, one paid for at taxpayer expense. Second, it
argued that the defendant has not made the necessary showing
to assure the court that he is not the source of the funds
being paid to Attorney Schoenbach.

A.
Impact of Family Funds

At
hearing, the government conceded that, although the
defendant's grandmother and girlfriend may be
“family” in the common usage of the term, they
are third parties pursuant to the Judiciary Policy because
they are not the defendant's spouse (or parents, were he
a juvenile). See Judiciary Policy § 210.40.50.
This is a commonsense scope of restriction, as a defendant
presumably has access to, and control of, only his/her funds
and those he/she may share with a spouse. That other family
members may have financial resources is of no
moment, as they have no legal obligation to provide counsel
to the defendant, and the defendant has no ability to direct
how they dispense their funds. Further, the Local CJA
commands that a judge specifically not consider the
financial ability of a defendant's family to retain
counsel when considering an application for court-appointed
counsel, “unless the family indicates willingness and
ability to do so promptly.” Local CJA § 4.2.1.5.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Nevertheless,
the government argued that the family members here, even if
third parties, have indicated a willingness and ability to
provide the cost of counsel through their retention of
Attorney Schoenbach. See Response at 1. It ...

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